Brief filed on Montgomery County Register of Wills' behalf calls for reversal of gay marriage ruling

D. Bruce Hanes, Register of Wills for Montgomery County, speaks on the release of marriage license to a same sex couple earlier in the day in his office in One Montgomery Plaza in Norristown July 24, 2013. Photo by Gene Walsh/Times Herald Staff

NORRISTOWN — A brief filed on behalf of Montgomery County Register of Wills D. Bruce Hanes was released Monday stating that the commonwealth’s decision to side with the Pennsylvania Department of Health and stop Hanes from issuing marriage licenses to same sex couples must be reversed.

“The Commonwealth Court has ordered that Hanes must violate the United States and Pennsylvania constitutional rights of individuals seeking to marry persons of the same sex by denying marriage licenses to such applicants,” the brief reads.

In the brief, attorneys for Hanes say the court did not question the constitutionality of the Defense of Marriage Act and mandamus action forces him to violate the rights of same-sex couples.

“Ultimately, the determination of whether or not Pennsylvania’s DOMA is unconstitutional is so inherently related to the claims against Hanes, that it must be addressed by this Court,” the brief reads.

They also write that the Health Department does not have standing to bring any action against Hanes.

According to the brief, “Only the Attorney General of Pennsylvania, the District Attorney, or a private citizen with a specific and independent legal right or interest different than the public at large has standing to bring this mandamus action.”

The brief states that Department of Health does not fall under any of those categories and does not have the right to bring the action against Hanes.

Despite the guidelines that must be followed for a writ of mandamus to be filed, the Commonwealth’s Court allowed the Department to file a writ for two reasons according to the brief.

First the brief says the Commonwealth Court concluded “the Department has standing in its own right to bring this action.” The brief then states the department had a right to bring it up because the Attorney General requested the department to bring it up on her behalf in letter dated Aug. 30, 2013.

However, the brief continues by stating the Department of Health does not have the “statutory” power to issue marriage licenses.

Finally, the brief says the mandamus action does not fall within the jurisdiction of the Commonwealth Court. The brief states the matter should have been transferred to the Pennsylvania Supreme Court.

The Commonwealth now has 30 days to respond to the brief. Once all of the paper work is submitted by lawyers from the Department of Health will go to Harrisburg to make arguments in front of Pennsylvania’s Supreme Court.

“I think that I’ve done the right thing and the Supreme Court will also do the right thing,” Hanes said.

On July 23 Hanes announced he would begin issuing marriage licenses for same sex couples. Until he was forced to stop on Sept. 12 he issued 174 licenses to same sex couples. According to earlier reports by The Times Herald, 118 of those were used to complete marriage ceremonies.